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When An EC Member's Appointing Authority Comes Before the Commission

Thursday, June 14th, 2012

Robert Wechsler

According to Courthouse
News Service articles Tuesday and yesterday,
former Georgia ethics commission executive secretary Stacey
Kalberman and her deputy, Sherry Ellen Streicker, filed suits
against the commission and its chair, Patrick Millsaps, for
retaliating against their attempt to investigate then Governor
Deal's alleged campaign finance violations by removing Streicker's
position from the budget, seriously cutting Kalberman's salary,
leaking an e-mail to the chair about this issue, and falsely stating
that Kalberman had resigned from her position.

I have attached a memorandum from the state inspector general's
office, based on an interview with Kalberman (see below). That and the articles
clearly set forth her view of what is alleged to have occurred. There is no reason to
go further into the details here.

There are two aspects of the case that really matter, from a government
ethics point of view. One, Governor Deal re-appointed Millsaps, Governor Deal was being investigated, and
Millsaps appears to have been involved in the matter. Two, Millsaps' actions regarding budget cuts do not appear to have followed formal budget processes.

As the
IG's memo says, "When asked for her response to the allegation that
Governor Deal abused his position and 'had his appointee, Millsaps,
get rid of Executive Secretary Stacey Kalberman' ... , Kalberman
stated, 'I believe it is absolutely true but of course I don't have
documents from the Governor telling Patrick Millsaps to get rid of
me.'"

The question is, Is any document necessary? Here's the situation. A
lawyer with ongoing involvement in local and state legal and
political matters is appointed to the state ethics commission by one
governor, and reappointed by another governor. The appointment
system was not his doing, but he accepted the system and the
position. As soon as a matter involving his appointing authority
arose, he could have chosen to withdraw from the matter due to the
apparent conflict involved. According to an
article in the Atlanta Journal-Constitution, he "said he would
likely recuse himself from the Deal case anyway." He was aware of
the value of withdrawing. But he chose not to.

When the executive
secretary sought approval of subpoenas related to the matter
involving the governor, which are apparently approved by the chair, the chair did not say that he had withdrawn
from the matter and to have them approved by the vice-chair. He instead told her he was cutting the position of her deputy, which was the sole investigatory position, thereby ending all investigations, and that he was substantially
cutting her own salary.

Considering the situation, it is reasonable to assume the worst.
After all, the governor could have asked Millsaps to withdraw from
the matter as soon as he received the complaint. He could also have
turned over his authority to select ethics commission members to one
or more civic organizations (as is done in Atlanta). He or Millsaps
could have asked the executive secretary how they should handle the investigation of the governor. But they apparently did not.

So when Millsaps acted in a way that could be seen as impeding the
investigation of his appointing authority, and acted outside the ordinary course of handling
budget issues (which had been discussed for months), it doesn't matter whether the budget cuts were made to impede the investigation, or whether the governor was directly or
indirectly involved in Millsaps' conduct. Millsaps should not have
been involved at all, because his conduct could reasonably be perceived as benefiting his
appointing authority.

Had Millsaps turned the subpoena approval process over to somebody else, raised the budgetary issues formally at a commission
meeting, and allowed other members as well as staff to prepare for a
discussion of the matter before it was decided, there would be less
of an issue. It is the combination of a conflict situation and the
failure to follow formal processes that makes Millsaps' conduct appear so
improper.

The IG's office, of course, did not find any evidence
that the governor had been directly involved, and stopped there. But that does not mean
what happened was right, only that what appeared to be true
(directly or indirectly) could not be proven.

What's interesting here is that, according to a post on the Atlanta Unfiltered blog, the IG himself "said
in an interview that he 'isolated' himself from the investigation [of the governor]
from the start, since he is Deal’s appointee, and assigned the case
to his senior investigator." Of course, the IG office could not
legally expect the ethics chair to do what the IG had done, but
ethically the public could certainly have expected this of someone
in the ethics chair's position. If he could not deal responsibly
with a conflict, as the IG did, how could he ask other officials to
do so?